R94034D.PDF

ILLINOIS POLLUTION CONTROL BOARD

February 20, 1997

IN THE MATTER OF:

LANDFILLS, WASTE TREATMENT AND

TRANSFER FACILITIES LOCATED

WITHIN 100-YEAR FLOODPLAINS

)

R94-34

(Inquiry Hearing)

ORDER OF THE BOARD (by G.T. Girard, C.A. Manning, and M. McFawn):

This matter is before the Board on the Illinois Environmental Protection Agency’s

(Agency) motion, filed on December 2, 1994, requesting that the Board hold an inquiry

hearing on whether “landfills and other waste treatment and transfer facilities should be located

within a 100-year floodplain.” Specifically, the Agency requested an inquiry hearing because

of the expressed concern that “public health and [the] environment could be threatened during

a 100-year flood from flooding” of facilities such as landfills and other waste treatment and

transfer facilities. (Ag. Mot. at 2.) The Agency suggested that public comment should be

requested on the following four issues:

What type of facilities need to be regulated or prohibited from location

within the floodplain?

Should the entire floodplain be regulated or just the floodway?

Should just the 100-year floodplain be regulated or also the 500-year

floodplain?

If the Board decides that facilities should be regulated or prohibited from

location within the floodplain, then should the new regulation affect currently

permitted facilities or just new facilities and expansions?

In response to the Agency’s motion, the Board opened this docket on December 14,

1994 and sent this matter to hearing.

Hearing was held before Board Hearing Officer Musette

The Board’s authority to conduct an inquiry hearing in this matter and other statutory

provisions pertaining to landfill citing are contained in Sections 4, 5, 27, 39, and 39.2 of the

Environmental Protection Act. (415 ILCS 5/4, 5, 27, 39, 39.2 (1994).) The Office of Water

Resources in the Illinois Department of Natural Resources (IDNR/OWR) is authorized to grant

State permits for construction within the floodway portion of the 100-year floodplain. (See

615 ILCS 5/5 (1994).) IDNR/OWR also regulates construction in floodways of rivers, lakes,

and streams of the State. (See 92 Ill. Adm. Code 700.) Additionally, Executive Order No. 4,

issued by Governor James R. Thompson in 1979, provides information regarding appropriate

development in Illinois floodplains to agencies of the executive office. Regulations derived

from the Environmental Protection Act also condition the location of landfills in the 100-year

floodplain. (See. 35 Ill. Adm. Code 703.184, 724.118, 810.815, 811, 811.102(b), 812.109.)

Vogel, in Collinsville, Madison County, Illinois on June 28, 1995. At the hearing the

deadline for filing written public comments with the Board was extended to August 15, 1995.

The deadline for public comments was further extended to September 1, 1995 by hearing

officer order on August 15, 1995. On February 7, 1996 the hearing officer issued an order

directing that responsive comments to the public comments would be accepted by the Board if

received no later than April 1, 1996.

Twenty-three public comments (PC) were received by the April 1, 1996 deadline. On

April 25, 1996 Waste Management of Illinois (WMI) requested leave to file a response to PC

23, which was received by WMI after the close of the comment period. The Board will accept

the comment from WMI, numbered PC 24. The Board notes that the purpose of the inquiry

hearing was to seek public comment to determine whether landfills and other waste treatment

and transfer facilities should be located within a 100-year floodplain. Because the comment

may help answer one of the four issues sought to be addressed by this inquiry, the Board will

accept the comment to obtain a complete record.

BOARD HEARING

As previously stated, the Board hearing was held in Collinsville on June 28, 1995 and

transcribed for the record.

The following is a summary of the testimony received at the

hearing.

Testimony of Mr. Jerry Kuhn, Employee of the Agency

Mr. Kuhn, manager of the Resources Conservation Recovery Act Unit of the Permit

Section, Division of Pollution Land Control, Bureau of Land of the Agency, testified about the

current permitting requirements, which are found at 35 Ill. Adm. Code 703.184 and 724, for

locating a hazardous waste landfill. (Tr. at 17.) Mr. Kuhn specifically cited Section

703.184(c) which requires that owners and operators of hazardous wastes facilities identify

whether the facility is located within a 100-year floodplain. (Tr. at 17.) He stated that the

regulations do not address facilities within the 500-year floodplain. (Tr. at 17.) Mr. Kuhn

also noted that the definitions pertaining to floodplain location standards for hazardous waste

facilities can be found in Section 724.118(b)(2). Mr. Kuhn then quoted the definitions for

100-year floodplain, washout, and 100-year flood. (Tr. at 17-18.)

Next, Mr. Kuhn summarized Section 703.184(d) which dictates the minimum technical

information that owners and operators must provide for hazardous waste facilities located in

the 100-year floodplain. (Tr. at 18.) The information required includes: (1) an engineering

analysis, indicating hydrodynamic and hydrostatic forces expected in a 100-year flood; (2)

engineering design studies to show how washout will be prevented in a 100-year flood; or (3)

Landfills are also required to meet all requirements under the Wild and Scenic Rivers Act (20

ILCS 855/0.01

et seq

. (1994)) and Section 404 of the Clean Water Act (33 U.S.C. 1251

et.

seq.

(1992)), pertaining to wetlands.

For purposes of citation herein, hearing transcripts will be cited according to page number

(e.g. Tr. at ___), and Exhibits will be cited to by number (Ex.).

if applicable, a detailed description of procedures to remove hazardous waste to avoid a 100-

year flood. (Tr. at 18-19.) Mr. Kuhn also noted that additional location standards for

hazardous waste treatment, storage, and disposal facilities located in the 100-year floodplain

can be found at Section 724.118(b). These standards require that hazardous waste facilities be

designed, constructed, and operated to prevent washout in 100-year floods, or in the case of

existing facilities, such as landfills, that a washout of hazardous material would not result in

adverse effects on human health in the environment if washout occurred. (Tr. at 19.)

Mr. Kuhn further testified that currently there are only three active hazardous waste

landfills in Illinois, none of which are located in the 100-year floodplain. The three active

hazardous waste landfills are CID II in Cook County, Northwestern Steel and Wire in

Whiteside County, and Peoria Disposal in Peoria County. (Tr. at 20.) Mr. Kuhn also

testified that the flooding in 1993 caused no impacts to the three above-mentioned hazardous

waste facilities and that there were no hazardous waste landfill applications presently under

review by the Agency that would be located in either the 100-year or 500-year floodplains.

(Tr. at 20.)

Testimony of Mr. Kenneth Smith, Employee of the Agency

Mr. Smith, lead worker in the Solid Waste/UIC Unit, Permit Section within the

Division of Land Pollution Control, Bureau of Land of the Agency, testified about the

Agency’s permitting of non-hazardous waste landfills in Illinois. (Tr. at 20.) Mr. Smith

noted that the term “100-year floodplain” is defined as “any land area which is subject to a

one percent or greater chance of flooding in a given year from any source.” (See 35 Ill. Adm.

Code 810.103; Tr. at 21.) Before discussing Agency permitting responsibilities in relation to

waste facilities located in 100-year floodplains, Mr. Smith distinguished the permitting

responsibilities that the Illinois Department of Transportation (IDOT)

has in regulating

development in floodplains. (Tr. at 21-22.)

Mr. Smith referred to IDOT’s publication, “Floodplain Management: Local

Floodplain Administrations Manual” (hereinafter “Floodplain Management Manual,” see PC

1, Exh. A) which defines floodplain as land areas subject to flooding. (Tr. at 21.) The

Floodplain Management Manual defines floodway as the channel of a river and a portion of

the floodplain that carries most of the flood. (Tr. at 21.) IDOT regulations require that

development in floodways not obstruct or divert flood flows onto other properties. (Tr. at 21.)

IDOT requires a State permit for most floodway development. (Tr. at 22; PC 1, Exh. A at

13, 20.) Mr. Smith testified that the Board’s landfill regulations do not contain a comparable

definition of floodway (Tr. at 21), and “[t]he [IEPA] does not regulate landfill development

within a floodway.” (Tr. at 22.)

Effective July 1, 1995, the Division of Water Resources in the Illinois Department of

Transportation was renamed the Office of Water Resources within the Illinois Department of

Natural Resources through a consolidation of several State agencies. The short form

IDNR/OWR reflects the current name and bureaucratic address of the agency. Therefore, Mr.

Smith’s testimony refers to regulatory duties and publications of IDOT, which are currently

the responsibility of IDNR/OWR.

Mr. Smith further testified that all new and existing landfills operating under permits

issued pursuant to 35 Ill. Adm. Code 810-814 are required by Section 812.109(b) to determine

whether the facility is located within the 100-year floodplain. (Tr. at 22.) Mr. Smith reported

that any portion of a waste facility that lies within the 100-year floodplain must demonstrate

compliance with Section 811.102(b) “which prohibits restricting the flow of a 100-year flood,

operating in a manner that results in washout of solid waste from the 100-year flood or

reducing the temporary water storage capacity of the 100-year floodplain, unless resources are

undertaken to provide alternative storage capacities or for provision of drainage around

structures at the facility.” (Tr. at 22.)

Mr. Smith testified that the Agency has issued 30 permits for new landfills, expansions

of existing landfills, or initial significant modifications of permits, since adoption of the new

landfill regulations in September 1990. Mr. Smith reported that in all 30 cases, the applicants

were required to determine whether a portion of the facility was in the 100-year floodplain (see

35 Ill. Adm. Code 812.109(b)), and if so, the applicants were required to demonstrate

compliance with the requirement of Section 811.102(b). (Tr. at 23.)

Mr. Smith also reported that only five of the thirty landfills that received permits under

the new landfill regulations had a portion of the facility within the 100-year floodplain. (Tr. at

23.) Of those five, only one had a portion of the disposal area within the 100-year floodplain.

(Tr. at 23-24.) According to Mr. Smith, all five facilities having a portion of the facility

within the 100-year floodplain had complied with the 100-year floodplain requirements in

Section 811.102(b). (Tr. at 24.)

Mr. Smith additionally testified that Section 39.2(a)(4) of the Act (415 ILCS

5/39.2(a)(4) (1994)) requires that an applicant applying for local siting approval must

demonstrate that the facility is outside the 100-year floodplain, or that the site was flood-

proofed. (Tr. at 24.) He further noted that federal regulations (see 40 CFR 258.11) also

regulate waste facilities in 100-year floodplains.

Moreover, Mr. Smith stated that most of the landfills in Illinois initially permitted prior

to September 1990, under the old landfill regulations (see 35 Ill. Adm. Code 807) and earlier

regulations had ceased accepting waste and are closed. (Tr. at 24-25.) Mr. Smith reported

that the previous regulations, did not contain any provisions concerning landfill development

within the 100-year floodplain. (Tr. at 24.) Mr. Smith further maintained that the Agency did

not have an accurate count of the number of these older landfills located in the 100-year

floodplain. (Tr. at 25.) Mr. Smith also testified that approximately 56 landfills currently

permitted under the old regulations were awaiting repermitting under the new regulations (Tr.

at 25) that require compliance with Sections 812.109(b) (floodplain determination) and

811.102(b) (floodplain requirements). Mr. Smith concluded his testimony by noting that the

only operating landfill affected in the great flood of 1993 was the Waste Management facility

at Chain of Rocks on Chouteau Island in Madison County.

(Tr. at 25.)

Officially known as the Chain of Rocks Recycling and Disposal Facility, which is owned by

Waste Management of Illinois (hereinafter “Chouteau Island landfill”).

Questions for the Agency and IDNR/OWR Personnel

Following the Agency’s presentation by Mr. Kuhn and Mr. Smith, representatives of

the Agency responded to questions from citizens attending the hearing. (Tr. at 26.) Initially,

Ms. Jean Bowers questioned Mr. Kuhn about regulations that might allow waste to be moved

from a 100-year floodplain to escape a flood. (Tr. at 27-28.) Mr. Kuhn responded that he

had no knowledge of landfill waste being moved in Illinois to avoid a flood. (Tr. at 27-28.)

Ms. Kathy Andria then asked the Agency a series of questions concerning the

distinction between special wastes and hazardous wastes in relation to the Chouteau Island

landfill. (Tr. at 28-30.) Mr. Smith testified that the Chouteau Island landfill was permitted to

accept municipal solid waste and non-hazardous special waste. (Tr. at 29.) Mr. Kuhn

testified that special wastes that are hazardous must go to a hazardous waste landfill unless they

are exempted, such as household hazardous waste. (Tr. at 28.) Mr. Smith also noted that a

hazardous waste determination is based on both constituents and concentration. Waste

generators are required to determine whether their waste is hazardous or non-hazardous, and

the receiving facility is responsible for determining that the facility has a permit for the type of

waste being accepted. (Tr. at 29-30.) Concerned that harmful materials could leach into the

river and drinking water, Ms. Andria also questioned whether landfills located in 100-year

floodplains had different legal requirements for accepting special wastes than landfills outside

100-year floodplains which accepted special waste. (Tr. at 30-31.) Mr. Smith answered that

there is no legal difference between acceptance of waste at landfills. (Tr. at 30.)

Next, Ms. Andria raised a series of questions about how and when the 100-year

floodplain was delineated. (Tr. at 31-33.) Mr. Paul Osman, who represented IDOT at the

hearing, answered most of Mrs. Andria’s questions. Ms. Andria specifically questioned

whether the flooding at the Chouteau Island landfill, which occurred two out of the last three

years, was an indication that the site was experiencing floods at greater than a one-percent

chance. (Tr. at 31.) Mr. Osman responded that the term “100-year flood” was a misnomer

and likened the yearly chance of flooding to a coin toss. (Tr. at 32.) Mr. Osman also testified

that the floodplain determination in the area of the Chouteau Island landfill was made in the

late 1970’s. (Tr. at 32.) Ms. Andria then asked if, in Mr. Osman’s estimation, there should

be a new determination of the 100-year floodplain. (Tr. at 33.) Mr. Osman replied that

although some people believe there should be a new determination, he observed that when the

existing floodplain maps were overlain with air photos of the 100-year flood, “they were very

accurate, they were right on the line.” (Tr. at 33.)

Ms. Kathleen O’Keefe, representing the Land of Lincoln Legal Assistance Foundation

in East St. Louis, then asked Mr. Osman if there had been an overlay of the 1995 Flood with

the floodplain map. (Tr. at 33.) When Mr. Osman replied that he was not aware of such a

overlay, Ms. O’Keefe observed that areas in East St. Louis were flooded in 1995 that did not

flood in 1993. (Tr. at 33.)

Ms. Andria next directed a series of questions concerning compensatory flood storage

to Mr. Osman and Mr. Smith. (Tr. at 33-36.) Mr. Smith testified that when a structure is

built in a 100-year floodplain, compensation must be provided in the vicinity of the structure

which is in the floodplain. (Tr. at 34.) Mr. Smith further testified that the theory is to

“provide some sort of compensatory storage of an equal volume which causes that water

elevation to return back to what it would otherwise be if the structure hadn’t been built.” (Tr.

at 35.) In response to Ms. Andria’s specific questions about compensatory flood storage

calculations for the Chouteau Island landfill (Tr. at 36), Mr. John Kim of the Agency reported

that the Agency permit reviewer with specific knowledge of the Chouteau Island landfill was

not present at the hearing because these specific questions were not anticipated. (Tr. at 36-

37.)

Mr. Jack Norman then asked Mr. Smith to clarify the prohibitions referred to in

Section 811.102(b) (Tr. at 37) and stated that he disagreed with Mr. Smith’s interpretation.

(Tr. at 54-55.) Ms. Andria next asked a series of questions concerning the regulation that

specifies that washout of solid waste from a solid waste facility is prohibited. (Tr. at 38-41.)

Ms. Andria’s questions particularly concerned the penalties for violating that regulation (Tr. at

38) and the procedures for bringing such a matter to the attention of the Agency or the Board.

(Tr. at 39-40.) Mr. Kim explained that the Agency’s response would depend on the case-

specific situation surrounding the facility involved. (Tr. at 39.) Mr. Kim then explained a

number of ways that such a complaint could be brought to the attention of the Agency and

ways that the Agency would handle such a complaint. (Tr. at 40.) Mr. Kim further noted that

the ultimate legal determination about whether an existing facility complied with specific

regulations is made by the Board or the circuit court. (Tr. at 40-41.)

Ms. Andria also asked Mr. Kuhn if the hazardous waste regulations were adequate to

address concerns regarding hazardous waste facilities being located in 100-year floodplains.

(Tr. at 41.) Mr. Kuhn replied that there have been no applications to site hazardous waste

landfills in 100-year floodplains, that he does not anticipate any such applications, and “as

things stand now, I would say yes, they [the regulations] would be adequate.” (Tr. at 41-42.)

Ms. Andria and Dr. George Arnold then asked a series of questions concerning

whether the current siting regulations and procedures are adequate for siting landfills in

floodplains. (Tr. at 42-48.) Specifically, Ms. Andria asked if any landfills that have been

approved by local siting have then been denied permits by the Agency. (Tr. at 42.) Mr.

Smith replied that landfills had been denied initial construction or expansion permits because

they did not comply with the regulations. (Tr. at 43-44.) Ms. Andria stated she asked the

question because once the landfill siting was approved and not challenged, “citizens are pretty

much shut out at that point” and that “the permitting is a very mutually-cooperative venture.”

(Tr. at 44.) Mr. Ed Bakowski, Agency Manager of the Permit Section, who supervises both

Mr. Kim and Mr. Kuhn, elaborated on the siting permit requirements, stating that the Agency

frequently held public hearings to gather public input during the permit decision process. (Tr.

at 45.) Dr. Arnold then questioned the time spent by Agency permit writers in meetings with

landfill applicant personnel versus citizen opponents. (Tr. at 46-48.) Mr. Bakowski replied

that for applications where there has been a hearing, there have been meetings with citizens

before the hearing which have probably been “a third to a half” of the time spent with

applicant personnel. (Tr. at 48.)

Dr. Tanner Girard, a member of the Board, asked Mr. Kuhn a series of questions about

hazardous waste landfills (Tr. at 48-49) and asked Mr. Smith about landfill washouts in 1993

and 1995. (Tr. at 51.) Mr. Kuhn stated that there were three active hazardous waste landfills,

but none were in the 100-year floodplain. He also testified that there were other permitted

hazardous waste landfills in Illinois, but they were inactive. (Tr. at 48.) Mr. Kuhn also stated

that none of the three active hazardous waste landfills were affected by the 1993 or 1995

Floods. (Tr. at 49.) Mr. Smith added that he was not aware of any solid waste washed out of

any landfill in Illinois in the Floods of 1993 or 1995. (Tr. at 51.)

Board technical staff member, Mr. Anand Rao, next asked questions of Mr. Smith

concerning existing solid waste units scheduled to close by October 9, 1996 if they did not

meet the location restrictions pertaining to floodplains specified in Section 814.302(a) and (c).

(Tr. at 50-51.) Mr. Smith explained that municipal solid waste landfills that had a portion of

the facility in the 100-year floodplain had to meet the location standards in Sections 814.302(a)

and (c), or shut down by the specific October 1996 date. (Tr. at 50-51.)

Next, Mr. Smith, Mr. Kuhn, Mr. Bakowski, and Mr. Kim addressed a variety of

questions from various people. (Tr. at 53-69.) While many of the questions and answers

clarified or elaborated on previously discussed topics, there were some new facts and issues.

Mr. Kuhn testified that a closed hazardous waste facility on the Mississippi River owned by

Amoco was flooded in 1993 (Tr. at 53), and there was no knowledge of a wash-out from the

facility. (Tr. at 54.) Mr. Smith and Mr. Bakowski answered a series of questions about the

landfill design features necessary to keep liquid wastes in the landfill from moving outside the

landfill (liner systems and flood protection berms) and how these features may be affected by a

major flood. (Tr. at 55-60.) Generally, Mr. Smith and Mr. Bakowski pointed to engineering

requirements in the Board’s regulations and expressed confidence that landfills could be

properly designed to withstand a 100-year flood event. Mr. Bakowski did, however, speculate

on some possible system failures that could lead to flood waters entering a landfill. (Tr. at

59.) Ms. Livingston, a public citizen, and Mr. Rao also asked a series of questions about how

leachate would be collected and treated in both the engineering and regulatory contexts if a

landfill was breached by floodwaters. (Tr. at 65-69.)

Finally, Ms. Kay Kendall asserted in her statements and questioning that the Chouteau

Island landfill was improperly located (Tr. at 60-61) and was using improper soil for daily

cover. (Tr. at 63-65.) Board Chairman Claire Manning reminded the hearing participants that

this inquiry hearing was directed at the adequacy of the Board’s landfill siting regulations and

should not be turned into an enforcement hearing on the Chouteau Island landfill. (Tr. at 61-

62.)

Testimony of Mr. Jim Morfew

Mr. Morfew, who represented the Illinois Chapter of the Solid Waste Management

Association, testified that this association has 90 members who are involved in all aspects of

solid waste disposal including landfill ownership and operation. (Tr. at 71.) According to

Mr. Morfew, the industry believed that the laws and regulations currently in effect “effectively

deal with the issue of location of landfills in the floodplains” and that the regulations “have

been effectively implemented by the agency responsive to do so.” (Tr. at 71.) Mr. Morfew

noted that Section 39.2 of the Environmental Protection Act (Act) regulates the entire

floodplain through the siting process. Specifically, IDOT had jurisdiction over construction of

facilities in floodways and additional Agency regulations stipulated requirements for waste

management facilities in floodplains. (Tr. at 71-72.) Mr. Morfew questioned whether there

was sufficient risk to justify the resources, time, and additional funds that would be required to

further regulate the 100-year floodplain and extend regulations to the 500-year floodplain.

(Tr. at 73.) Mr. Morfew asserted that the 500-year floodplain was only a “very small

percentage larger” than the 100-year floodplain, and for many areas of the State, the 500-year

floodplain had not been designated. (Tr. at 72-73.) In summary, the industry’s position was

that the current regulations should not be changed. (Tr. at 73-74.)

Testimony of Ms. Kathy Andria

Ms. Andria from the Madison County Conservation Alliance and Stop Polluting Illinois

(SPILL), next made a presentation accompanied by slides (Tr. at 77-94). Most slides showed

the Chouteau Island landfill and environs during the 1993 Flood. Ms. Andria first expressed

disappointment that the notice of the public hearing was not more widely distributed. (Tr. at

78-79.) Chairman Manning responded that the Board welcomed public participation and that

the public notice was legally and procedurally correct. (Tr. at 79-80.)

Most of Ms. Andria’s positions were summarized in the introduction to her first slide:

Chouteau Island was flooded in 1993 to a depth of 20 feet. Flood water entered

the active area of the landfill and permeated the closed areas. Large quantities

of methane gas were released. The liner tore, pumps failed, levees were

breached, leachate was released into the river, treating it, so to speak, merely

by aeration, spraying it into the air and letting it fall back into the water. This

is a landfill that accepts special wastes, including lead and other hazardous

heavy metals, a landfill that has permits to use industrial sludge as daily cover.

But one year later IEPA granted them a permit for a lateral expansion. And last

month, two years later, that same island flooded again. Only this time the 48

families who resided on the island had been bought out by FEMA.

But the

landfill is still there; flooded again, including the very area IEPA permitted.

This time, again, they released leachate into the flood water. Solid waste was

seen in the water by a group I escorted to the island, which included people

from the U.S. EPA, the Corps of Engineers, the IEPA, and the Illinois

Department of Conservation.

They are in compliance, I am told. If that is the case, then the law needs to be

changed before Waste Management buys up the whole island and we have one

giant landfill centrally located between Illinois and Missouri.

Federal Emergency Management Agency.

Effective July 1, 1995, the Illinois Department of Conservation became the Illinois

Department of Natural Resources after consolidation with several other state agencies.

(Tr. at 81.)

Ms. Andria further stated that waste-hauling trucks ruined the bridge to Chouteau

Island. (Tr. at 82.) Ms. Andria also observed that one slide showed solid waste in the landfill

touching the flood waters, while other slides showed Waste Management of Illinois Inc.’s

(WMI) pipes discharging water from the landfill into a ditch. (Tr. at 84, 85, 87.) She also

claimed that WMI’s activities were affecting endangered species (Tr. at 88) and wetlands (Tr.

at 93-94).

Several participants from the Agency and WMI questioned Ms. Andria. (Tr. at 88-93.)

Additionally, WMI employees, Mr. William Schubert and Mr. Glen O’Brien, clarified some

of the pictures. (Tr. at 89-93.) Mr. Schubert reported that some slides showed collect down

drains which collect clean water from vinyl-covered areas on top of the landfill and carry the

water without making gullies in the side slope. (Tr. at 89-90.) Mr. Schubert also testified that

the white material in one slide was geotextile material used in landfill construction, not solid

waste. (Tr. at 90.) Moreover, Mr. Schubert noted that a breached levee in one slide was put

there by the Chouteau Island Levee District and was not constructed by WMI. (Tr. at 90.)

Mr. O’Brien testified that one slide showed a wetland where an old levee under the jurisdiction

of the Chouteau Island Levee District had failed and was not a slide of the WMI borrow pit.

(Tr. at 91-92.) Ms. Andria countered that she had slides of bulldozers in action and that

someone was bulldozing a wetland. (Tr. at 93-94.)

Testimony of Mr. Raj Janarthanan

Mr. Janarthanan, who works as a Geographical Information System (GIS) specialist

with the Illinois State Water Survey, Division of Surface Water Resources Systems and

Information and GIS,

presented the results from his Master’s thesis, entitled “Assessing the

Impact of Flooded Landfills on Ground Water Using GIS and Computer-Based Pollution

Models,” performed under the supervision of Mr. Varkki George of the Department of Urban

and Regional Planning at the University of Illinois. (Tr. at 95-96.) Mr. Janarthanan used the

Illinois GIS and computer-based pollution models to study the impact of flooded landfills on

groundwater. (Tr. at 96.) Madison County was chosen for the study because it had the

highest number of land disposal sites in the 100-year floodplain that were actually flooded in

1993. (Tr. at 97.) Ten land disposal sites were identified within the 100-year floodplain in

Madison County from a variety of GIS databases. (Tr. at 96-97.) Three of those sites flooded

in 1993. (Tr. at 97.) From those three sites, two landfill sites were chosen for the study:

Landfill A (200 acres), and Landfill B (25 acres). (Tr. at 97.)

To estimate leachate produced by the two landfills, Mr. Janarthanan used a model

entitled, “Hydrologic Evaluation of Landfill Performance” (HELP), that was developed by the

In PC 7, WMI stated that recent conversations with the Illinois Water Survey indicated that

Mr. Janarthanan was not authorized to speak on behalf of the Illinois Water Survey in

testimony before the Board on June 28, 1995. (PC 7 at 11.) In PC 20, Mr. Janarthanan

countered that the Illinois State Water Survey did authorized him to participate in the Board

hearing on June 28, 1995 as an Illinois State Water Survey representative. (PC 20 at 1.)

Army Corps of Engineers, Waterways Experiment Station at Vicksburgh, Mississippi. (Tr. at

98.) The HELP model (Version 3.01, see Tr. at 107) used water balance equations to

calculate leachate produced for various landfill designs under different climatalogical and

geologic variables. (Tr. at 98.) Since specific design data were not available for the two

subject landfills, general landfill design was assumed as recommended by the HELP model.

(Tr. at 98, 107.) Default soil and water balance values were defaulted by the HELP model for

the East St. Louis area. (Tr. at 98-99.) The HELP model also determined the daily rainfall,

temperature, and solar radiation based on data from St. Louis, Missouri. (Tr. at 99.)

According to the HELP model results, Landfill A produced 105,736 cubic feet of

leachate under normal conditions and 4,356,753 cubic feet of leachate “after it was flooded.”

(Tr. at 99.) Landfill B, according to the HELP model, produced 1,004 cubic feet of leachate

under normal conditions and 51,230 cubic feet of leachate under post-flood conditions. (Tr. at

99.)

Next, Mr. Janarthanan used ground water models to estimate the rate and area of the

leachate plume based on the leachate numbers generated by the HELP model. (Tr. at 99.)

Mr. Janarthanan then used values from several hydrogeologic parameters in a dispersion flow

model to determine velocity field and head field of the leachate. (Tr. at 100.) The output

from the dispersion model was analyzed with landfill position in the Particle Tracking Model

to derive plume dispersion contours. (Tr. at 100.) Groundwater levels and hydraulic

conductivity specific to the area were obtained from reports of the Illinois State Water Survey

published in 1993. (Tr. at 100.) The Particle Tracking Model generated numbers using both

low hydraulic conductivity and high hydraulic conductivity values for each site. (Tr. at 100-

101.) Several assumptions were necessary to run the model. (Tr. at 100-101.) Finally,

leachate plume contours were overlaid on a land use map using GIS software. (Tr. at 102-

103.) Mr. Janarthanan asserted that the results from the GIS software and computer-based

pollution models could aid decisionmakers in seeing the impact of ground water contamination

on surrounding areas. (Tr. at 103.)

Mr. Janarthanan concluded his presentation by noting that his “findings [were] not

accurate predictions, but rough estimates. Groundwater Systems are very complex and cannot

be completely simulated. Furthermore, we had to make many assumptions in applying the

pollution models.” (Tr. at 103.) Mr. Janarthanan next fielded various questions, which

primarily clarified his presentation. (Tr. at 103-107.) Mr. Janarthanan stated that there has

been no field testing to verify the numbers generated by the computer models. (Tr. at 106-

107.)

Testimony of Dr. George Arnold

Dr. Arnold testified as a member of the Madison County Conservation Alliance. (Tr.

at 109.) Dr. Arnold stated emphatically that there needed to be an absolute prohibition against

landfills operating in the 100-year floodplain. (Tr. at 110.) According to Dr. Arnold, the

USEPA, the Agency, and the Madison County Environmental Department were too permissive

by allowing the Chouteau Island landfill to operate during the 1993 and 1995 Floods. (Tr. at

110.) He asserted that the landfill was against common sense and was despicable because it

used up flood space, interfered with flood flow, polluted flood waters, jeopardized

neighborhood wells, degraded wetlands, chased away endangered aquatic birds, and polluted

waters used by millions of people downstream. (Tr. at 110-111.)

Dr. Arnold asserted that “[w]e are guilty of the same environmental irresponsibility as

the Communists” in eastern Europe and that shuffling environmental management

responsibility from USEPA to the state and the county was part of the general environmental

problem. (Tr. at 111.) He further maintained that citizens were puzzled by the array and

deficiencies of delegated authorities. (Tr. at 111.) He called on the Board to “close this

abominable landfill [(Chouteau Island)]” by decree. (Tr. at 111.) Dr. Arnold also noted that

there was a “hodgepodge” of authorities concerned with flooding and wetlands, there were

better alternatives for landfills than Chouteau Island and, finally, that the Chouteau Island

landfill reminded him of the Wilsonville toxic dump. (Tr. at 112-113.) Moreover, he asserted

that the Chouteau Island landfill would be able to expand because nearby residents have been

bought out by FEMA. (Tr. at 113-114.)

Dr. Girard asked Dr. Arnold how the Board could pass a regulation with an absolute

prohibition against landfills in 100-year floodplains when Section 39.2(a)(4) of the Act

specifically specified that a waste facility could either be located outside the boundary of the

100-year floodplain or inside the 100-year floodplain, if the site was flood-proofed. (Tr. at

115.) Dr. Arnold responded that flood-proof was a misnomer because the Chouteau Island

landfill flooded and that the word “flood-proof” in the regulations was a “weasel word.” (Tr.

at 115-116.) Dr. Girard then asked Dr. Arnold whether his campaign to shut down the

Chouteau Island landfill should be directed at the Illinois General Assembly, which passes laws

that tell the Board and the Agency how to operate and what to do. (Tr. at 116.) Dr. Girard

added that if the phrase “or the site is flood-proofed” was removed from the current law, it

would be easier for the Board to prohibit landfills in 100-year floodplains. (Tr. at 116.) Dr.

Arnold responded by harkening back to “an earlier courageous Pollution Control Board” and

invited the current Board to “take on more courage.” (Tr. at 117.) Board Member Marili

McFawn remarked that citizens’ voices are often louder than the Board’s voice when

legislative changes are necessary and noted that the earlier Board’s efforts were struck down

by the legislature when it overstepped its limited statutory authority, e.g. adopted regulations

which in effect amended or created laws. (Tr. at 118.)

Testimony of Mr. Jim Bensman

Mr. Bensman, who represented the Piasa Palisades Chapter of the Sierra Club,

respectfully suggested that the Board could try press releases to give notice of public meetings.

(Tr. at 119-120.) Mr. Bensman asserted that the demarcations of 100-year floodplain and 500-

year floodplain should be changed based on the 1973, 1993, and 1995 Floods. (Tr. at 120.)

He also asserted that the definition of floodplain should be changed because levees fail, and

therefore, leveed property was not out of the floodplain. (Tr. at 120-121.) Finally, he

acknowledged the idea that resolution of this issue depended on the Illinois General Assembly.

(Tr. at 121.) Ms. Andria then asked Mr. Bensman a series of questions about his visit to the

Chouteau Island landfill in 1994. (Tr. at 122-123.)

Testimony of Ms. Jean Bowers

Ms. Bowers asserted that when landfills are placed in 100-year floodplains, surface

waters and aquifers are contaminated. (Tr. at 125.) She maintained that Mr. Janarthanan’s

study showed that the contamination was almost impossible to fix. (Tr. at 125.) She made

three suggestions to solve the problem: (1) do not put a landfill in a known floodplain; (2) do

not grant an extension to that particular landfill, once a landfill has flooded and produced a

washout; and (3) be absolutely sure that all regulations applying to landfills are enforced. (Tr.

at 125-126.) Ms. Bowers finally asserted that “[t]o do otherwise [was] playing Russian

roulette with our precious water supply.” (Tr. at 126.)

Testimony of Ms. Patty Riggins

Ms. Riggins stated that after the 1993 Flood, the Board should not “accept the

engineers’ word anymore that something [was] flood-proof.” (Tr. at 127.) She also claimed

that in 1995, land was flooded that had not been flooded in 1993. (Tr. at 127.) She opined

that the Chouteau Island landfill was restricting the flow of the water and reducing the water

storage capacity of the floodplain, so the land remained flooded longer. (Tr. at 127-128.)

Finally, she stated that if the Chouteau Island landfill is not in violation of existing regulations,

then those regulations need to be changed. (Tr. at 128.)

Testimony of Mr. John Bossert

Mr. Bossert spoke on behalf of Andrews Environmental Engineering. (Tr. at 129,

132.) Mr. Bossert observed that the hearing up to this point had focused on three landfills

located next to the Mississippi River, one of the largest rivers in the world. He stated that not

all landfills in Illinois have a similar situation and that location next to the Mississippi River

may be a special condition for a landfill. Thus, he asserted that a change in the landfill

regulations was not warranted for all landfills in the State. (Tr. at 130-131.)

Mr. Bossert was then asked a series of questions that elaborated on his statement that

landfills next to large rivers may need a rule change, but there were many other landfills in

Illinois, and if the regulations work for them, the corresponding regulations should not be

changed. (Tr. at 131-140.) Additionally, Mr. Osman clarified the IDNR/OWR jurisdictional

limits and definitions of floodways and floodplains. (Tr. at 134-135.) Jurisdictional

floodplains in urban areas must have a drainage area of one square mile, while floodplains in

rural areas must have a drainage area of 10 square miles. (Tr. at 134.) Most of those streams

were shown on FEMA floodplain maps. (Tr. at 134.) Every stream has a floodway, but not

every floodway was mapped. (Tr. at 134.) Later in the hearing, Mr. Osman further clarified

that the floodway was determined by the levee line on the lower Mississippi and Illinois

Rivers. (Tr. at 160.) In relation to Chouteau Island, the floodway would be the levee that

surrounds the island, while inside the levee would probably be designated as a floodplain. (Tr.

at 160.)

Statement of Mr. Harry Parker

Mr. Parker raised several issues about the engineering of landfills. He stated that

plastic liners for landfills are thin and become brittle, then shrink, and crack with age. He

asserted that the leachate collection systems become clogged. Finally, he maintained that the

“engineering has never been proven over the long haul” and that incorporated landfill owners

can walk away leaving taxpayers with the problem. (Tr. at 143.)

Statement of Ms. Whitney Rosen

Ms. Rosen, legal counsel for the Illinois Environmental Regulatory Group (IERG), a

trade organization representing 58 members of industry in Illinois, stated that some of IERG’s

members had interests in landfills, and others could possibly be affected by changes in landfill

regulations. (Tr. at 144, 146.) Ms. Rosen supported the statement of Mr. Morfew and noted

“that it’s unfortunate that much of today’s proceedings have focused on one very emotional

situation within the state.” (Tr. at 144.) She encouraged the Board to focus on the four

questions at issue and the technical record when deciding whether the landfill regulations

needed to be changed. (Tr. at 144.)

PUBLIC COMMENTS

PC 1 and 5, Illinois Department of Transportation (IDOT)

IDOT provided the Board with copies of its regulations concerning construction in

floodplains and floodways, found at 92 Ill. Adm. Code 700 and 706. (PC 1.) IDOT also

provided a copy of a booklet entitled Report on the Executive Order (Report). (PC 5.) This

Report discussed the rationale for and impact of the Governor’s Executive Order No. 4

(Order) signed by Governor James Thompson on May 4, 1979. In summary, the Order was

signed to encourage regulation of construction and development in floodplains and to ensure

the State’s eligibility for federal aid for flood prone buildings. (PC 5 at 2.) The Order

provided that construction by State agencies of buildings and roads, landfills and similar

activities in identified “Special Flood Hazard Areas” must be built according to the standards

in IDOT’s regulations, which provide that new buildings be protected from damage by the

100-year flood and that construction activities do not cause or increase flood damage to other

properties. (PC 5 at 2.)

The Report indicated that the traditional methods of dealing with flood damage such as

building levees, reservoirs, and other structures have proved to have several shortcomings.

(PC 5 at 3.) In order to counterbalance these shortcomings, a complementary approach was

developed in the 1940’s. (

.) This approach was to control flood damage by controlling the

development of floodplains through government ownership or regulation. (

.) A complete

flood management program included measures to protect existing development and ownership

measures to prevent future development from being subject to flood damage. (

The four objectives of the Order were:

To bring state-owned properties under floodplain regulation. This was

recommended in 1975 by the Governor’s Task Force and is now

required as a condition of federal aid. This also brings state-owned

properties under the same rules the state and the NFIP [National Flood

Insurance Program] require for private property.

To provide for a better investment of State funds. Studies have shown

that the additional construction costs required by floodplain regulations

are not as great as the costs of flood damages. NFIP insurance policies

are required only for insurable buildings receiving federal aid. Because

most state-owned floodplain construction will continue to be self-

insured, floodplain regulation will result in a direct savings to the State

treasury and wiser use of state grant and loan money.

To bring other construction projects under floodplain regulation. By

including grant and loan programs and other existing regulatory

programs in the order, the state can assist in expanding the number and

type of projects subject to floodplain regulations. This would include

projects statutorily exempt from local ordinances and projects in those

cities and counties not in the NFIP. The order is worded to ensure that

duplicate regulation need not occur.

Where floodplain regulation is not appropriate, to notify those affected

by state planning activities of the flood hazards and encourage wise

construction and land development.

(PC 5 at 8.)

PC 2, Suzanne Wilkins, Executive Director, Mississippi River Basin Alliance (Alliance)

The Alliance commended Illinois for “looking at its floodplain policies.” However,

the Alliance believed that the floodplain regulations in Illinois were not strict enough and

needed better enforcement. (PC 2 at 2.) The Alliance also did not believe that landfills, either

sanitary or hazardous waste, should be sited within the 100-year or 500-year floodplain. (

The Alliance conceded that it may not be possible to move all facilities out of the 500-year

floodplain and asserted that expansion of any facility in a high to medium hazard flood area

was “ludicrous.” (

.) Finally, the Alliance believed that Illinois should examine the entire

State and determine where the best locations for landfills were. (

PC 3, Beverly Herzog, Senior Hydrogeologist and Head Groundwater Resources and

Protection, Illinois State Geological Survey (ISGS)

The ISGS position was that Illinois has more suitable areas than floodplains for locating

landfills. (PC 3.) The ISGS also indicated that many floodplain areas should be omitted from

consideration for other geological considerations such as “shallow aquifers or slope

instability.” (PC 3.) The ISGS pointed out that the potential for inundation, which increases

the probability of surface and groundwater contamination, has been demonstrated several times

over the past few years. (

PC 4, David Schein

Mr. Schein’s comment urged the Board to adopt regulations prohibiting placement of

landfills and other waste management facilities in flood hazard areas. Mr. Schein commented

that landfills fill floodplains and reduce the flood carrying capacity of the watercourse and its

floodplain areas. Mr. Schein further noted that both the Order and Presidential Executive

Order 11988 establish policies for the State and federal government in developing floodplains.

Mr. Schein maintained that compliance with the executive orders was “poor.” Thus, Mr.

Schein urged the Board to take a proactive step in “protecting the people of Illinois from the

many problems caused by siting waste management facilities in flood hazard areas.” (PC 4 at

2.)

PC 6 and 20, Raj Janarthanan, Illinois State Water Survey

Mr. Janarthanan commented to correct errors in the transcript regarding his testimony.

Mr. Janarthanan also commented to “reply to the incorrect impression provided by Waste

Management of Illinois regarding” Mr. Janarthanan’s testimony. (PC 20 at 1.) Mr.

Janarthanan stated that he was “an academic hourly employee for the Illinois State Water

Survey” and the Illinois State Water Survey “authorized” Mr. Janarthanan’s participation at

the public hearing as a representative of the Illinois State Water Survey. (

PC 7, 12 and 24, Waste Management of Illinois, Inc. (WMI)

WMI stated that it was uncertain why the Agency posed its first question regarding

what types of facilities needed to be regulated or prohibited from location within the floodplain

when solid waste disposal facilities were already among the most stringently regulated type of

facility within the 100-year floodplain. (PC 7 at 2.) WMI pointed to statutory and regulatory

requirements of IDOT which regulate construction in floodplains. WMI first noted that it was

statutorily required that every entity prove a given structure was not located within the

floodway portion of the floodplain. If a structure was located in the floodway, a permit was

required, and IDOT would not issue a permit until it was certain that a structure would not

increase flood damage. (PC 7 at 3.) Before IDOT would issue such a permit, the applicant

has to demonstrate either (1) that a flood easement has been obtained by purchasing all

structures that would be affected by increased flood flows, or (2) that structures have been

designed and constructed so there would be no increase in flood levels during a flood event.

(

WMI also pointed to the Board’s regulations in 35 Ill. Adm. Code.Subtitle G which

require that if a facility was located in a floodplain, the facility must document that the landfill

It appears that PC 7 and 12, submitted by WMI, are identical and were incorrectly numbered

twice.

would not restrict the flow of a 100-year flood, the landfill would not result in washout of

solid waste during a 100-year flood, and the landfill would not reduce the storage capacity of

the 100-year floodplain. (PC 7 at 4.) WMI indicated that groundwater monitoring was also

required for facilities and that Section 39.2 of the Act added additional requirements. (PC 7 at

4-5.) WMI asserted that these regulatory and statutory provisions have worked effectively in

Illinois. (PC 7 at 5.)

WMI also maintained that in addition to regulatory and statutory limitations on

floodplain development, engineering techniques help ensure the protection of the environment.

(PC 7 at 5.) Techniques such as leachate control systems and advanced liners all help to

safeguard the environment. (PC 7 at 5-6.) Further, WMI asserts that there are other types of

industrial facilities constructed in floodplains that pose a far greater environmental risk than

landfills. (PC 7 at 5.) Facilities such as refineries, fertilizer plants, and wastewater treatment

plants pose an equal or greater risk, according to WMI. (

WMI also addressed questions and statements regarding its facility on Chouteau Island

known as the Chouteau Island landfill. WMI stated that during both the 1993 and 1995

Floods, “plans were put into place and environmental protection and containment mechanisms

worked as designed.” (PC 7 at 7.) WMI asserted that no washout of waste occurred,

adequate storage for floodwaters in borrow pits was available, and no restriction of the 100-

year flow was experienced. (PC 7 at 7-8.) WMI also maintained that leachate collection and

groundwater monitoring were successful in helping to avoid contamination. (PC 7 at 8-9.)

Additionally, WMI took issue with the testimony of Mr. Janarthanan. WMI pointed to

several insufficiencies in the modeling done by Mr. Janarthanan including the fact that Mr.

Janarthanan’s paper did not deal with site-specific information regarding containment and

leachate handling systems. (PC 7 at 9.) WMI stated that the groundwater monitoring that was

actually conducted at a solid waste disposal facility was more detailed than the techniques

described by Mr. Janarthanan. (

.) Finally, WMI asserted that Mr. Janarthanan was not a

representative of the Illinois Water Survey. (PC 7 at 11.)

PC 8, Susan Grans, Vice-President, Winnebago Reclamation Service, Inc.

Winnebago Reclamation Service, Inc. commented that it “strongly believe[s] that

current regulations

ensure environmental protection.” (PC 8.) Winnebago Reclamation

Service does not believe any additional regulations are necessary.

PC 9, Illinois Environmental Regulatory Group (IERG)

IERG opposed the prohibition of landfill siting in floodplains and further argued that

any effort to prohibit such siting was contrary to the intent of the legislature. (PC 9 at 2.)

IERG pointed to the plain language of the Act that provides that a facility shall either be

outside the 100-year floodplain or shall be floodproofed. (

.) IERG maintained that the plain

language of the statute indicates that the legislature intended that pollution control facilities

could be sited within the 100-year floodplain. (PC 9 at 2-3.) Thus, IERG argued that absent a

statutory change, the Board cannot act to prohibit siting of a floodproofed pollution control

facility. (PC 9 at 3.)

PC 10, John McDonnell, American Disposal Services, Inc. (ADS)

ADS filed this comment in response to the IDOT public comments (see PC 1 and PC

5). ADS believed that a statewide ban on landfills in floodplains was not sound public policy

for three reasons. First, the events of 1993 were unique for many reasons, but specifically in

terms of the size of the watershed impacted. ADS believed that this represented a “worst

case” and to develop public policy based on “worst case analysis” ignored important factors

such as geologic setting and public need. (PC 10 at 1.) Second, ADS maintained that many

Illinois landfills currently operating, or proposed to be operated, in a floodplain were in

watersheds with significantly smaller dimensions. (PC 10 at 2.) Third, established hydrologic

procedures and programs exist for predicting flood potential within these smaller watersheds.

ADS maintained that the technical community can safely and conservatively estimate floods

and landfill owners could construct necessary flood proofing. (

PC 11, Andrew Rathsack, President, Andrews Environmental Engineering, Inc. (Andrews)

Andrews has been a provider of consulting engineering services to landfill owners and

operators for over 21 years. Andrews opined that no additional legislation or regulations

concerning the location of landfills in floodplains was necessary. Andrew maintained that the

provisions of Section 39.2(a)(4) of the Act and 35 Ill. Adm. Code 811.102(b)

were sufficient

to protect floodwaters from contamination by landfills.

PC 13, James Douglas Andrews, P. E.

Mr. Andrews commented that the restrictions imposed by the General Assembly in

Section 39.2(a)(4) of the Act have been “extremely effective” at protecting floodwaters from

contamination by landfills. Mr. Andrews also stated that the General Assembly “wisely

allowed local governmental units to balance the need for waste management facilities . . .

against any potential for contamination of floodwaters.” (PC 13.)

PC 14, Illinois Department of Agriculture (IDOA)

IDOA stated that due to the potential for leachate from floodplain landfills entering

surface and subsurface waters, the practice of siting landfills in floodplains was

“questionable.” (PC 14 at 2.) IDOA indicated that current regulations should be examined

and revised “if necessary” to ensure that measures are taken to prevent migration of leachate

Section 39.2(a)(4) of the Act requires that a facility either be located outside a floodplain or

be floodproofed. Section 811.102(b) provides that the “facility shall not restrict the flow of a

100-year flood, result in washout of solid waste from the 100-year flood, or reduce the

temporary water storage capacity of the 100-year floodplain.”

into surface and subsurface waters. (

.) IDOA also urged that all feasible alternatives be

examined to avoid siting of landfills on land classified as “Prime Farmland.” (

PC 15, Jean Furlan, Manager, Midwest Region, National Solid Wastes Management

Association (NSWMA)

NSWMA addressed each of the four questions posed by the Agency at the outset of this

proceeding. In response to the first question, NSWMA stated that it opposed a change in the

regulation of landfills in the 100-year floodplain including any ban on landfills in the 100-year

floodplain. (PC 15 at 2.) NSWMA believed that the current statutory and regulatory limits on

floodplains effectively limit placement of landfills and other pollution control facilities in the

100-year floodplain. (

.) NSWMA pointed out that even if a landfill was approved for siting

in the floodplain, the Board's regulations at 35 Ill. Adm. Code 810-815 regulated landfills to

ensure the landfill’s structural and environmental integrity. (PC at 3.)

NSWMA also discussed IDOT regulations requiring a permit prior to construction in a

floodplain. Before IDOT would issue such a permit, the applicant must demonstrate either (1)

that a flood easement has been obtained by purchasing all structures that would be affected by

increased flood flows, or (2) that the structure has been designed and constructed so there will

be no increase in flood levels during a flood event. (PC 15 at 3-4.) NSWMA also reviewed

the Board’s regulations that require a letter from IDOT to be submitted to the Agency

indicating the landfills proximity to a 100-year floodplain during the Agency permitting

process. (PC at 4.) The Board’s regulations also prohibited operation of a facility that would

restrict the flow of a 100-year flood or result in washout of solid waste during a 100-year flood

event. (PC at 5.) Finally, in support of NSWMA’s position that there should be no change

regarding placement of landfills in the 100-year floodplain, NSWMA noted the testimony in

this proceeding by Mr. Jerry Kuhn and Mr. Kenneth Smith. (PC 15 at 5-6.)

In response to the remaining three questions posed by the Agency, NSWMA reiterated

that the statutory and regulatory provisions should not be changed. Thus, NSWMA opposed

expansion of regulation to the 500-year floodplain. (PC 15 at 8.) NSWMA also stated that, if

the Board does propose a change, the change should only be prospective. (PC 15 at 9.) A

retroactive application of any change would impose an undue burden on the solid waste

industry. (

PC 17, Roderic S. Stipe, Manager of Environmental Compliance, John Sexton Sand & Gravel

Corporation (Sexton Companies).

Mr. Stipe stated that the Sexton Companies were opposed to a ban on siting of solid

waste landfills within the 100-year floodplain. Mr. Stipe listed three main reasons why the

Sexton Companies believed that a wholesale ban on siting landfills in floodplains was

unwarranted. First, he pointed out that floods like the 1993 Flood occur globally every year

and other regions of the United States have laws that “are enacted to promote better design of

physical structures to protect the population and minimize property damage from such

disasters.” (PC 17.) Second, Mr. Stipe maintained that past flooding was responsible for

depositing silt which forms thick natural clay barriers which provides significant protection to

the environment, thus making these areas advantageous for siting a landfill. (

.) Finally,

Mr. Stipe noted that construction technology is available to protect communities from the

impacts of flooding while mitigating impacts of flooding on the local watershed. (

PC 19, John H. Turner, Vice-President State Governmental Affairs, Browning-Ferris

Industries (BFI)

BFI stated that it strongly opposed promulgation of any regulation concerning

municipal solid waste landfills which exceeds the federal criteria. (PC 19 at 1.) BFI

maintained that absolute “distance” requirements and siting restriction frequently lack any

rational basis or reasonable support in fact. BFI then argued that such requirements “[were]

tenuous, speculative, and contrary to the weight of scientific and engineering opinion.” (PC

19 at 2.) BFI also quoted USEPA regarding operation of a landfill in floodplains. (

USEPA believed that such an across-the-board ban is not necessary for municipal solid waste

landfills to protect human health and the environment. Second, USEPA believed that the

banning of landfills in floodplains could affect large portions of the United States straining the

regulated community’s ability to provide adequate disposal capacity. (PC at 3, citing 56 FR

51044.)

PC 21, R. Varkki George, Assistant Professor, University of Illinois at Urbana-Champaign

Professor George filed a comment supporting the testimony of Mr. Janarthanan and

noting that the work was done under Professor George’s supervision. Professor George stated

that the work done by Mr. Janarthanan had significant implications for the subject under

review by the Board.

PC 16, 22 and 23, Dr. George Arnold, Madison County Alliance, and Kathy Andria, Madison

County Conservation Alliance and Stop Polluting Illinois (SPILL)

PC 16 detailed the history of the Chouteau Island landfill from 1969 when Chouteau

Island Citizens’ Association (Citizens) wrote a letter complaining about the “garbage dump” in

1969 to the present day. (PC 16 at 1.) Citizens also stated that the neighbors have repeatedly

fought against the intrusions and that at the local level, Madison County Board of Supervisors

tried to close down the landfill in 1972. (

.) Citizens further asserted that the landfill has

flooded six times, and most recently in 1993 and 1995. (PC 16 at 2-3.) Citizens additionally

claimed that leachate was released during the 1993 and 1995 Floods and the landfill has led to

the degradation of the Chouteau Island. (

.) Citizens argued that the total landfill acreage

was over 400 acres and that public participation had been stymied during the permitting

process. (PC 16 at 3.)

Citizens also stated that it believed that the flood modeling for Chouteau Island was “an

exercise in frustration” and that the flood-proofing at the site was insufficient. (PC 16 at 4.)

Citizens pointed out that the landfill was constructed over an aquifer and asserted that several

violations have occurred at the facility. (PC 16 4-6.) Citizens argued that the facility should

be closed now. (PC 16 at 7.)

On April 4, 1996 the Board received a comment from SPILL which addressed some of

the general issues of this proceeding. SPILL maintained that the regulations were not at all

stringent because the regulations have not prevented facilities from being flooded nor have the

regulations prevented pollutants from entering floodwaters. (PC 23 at 1.) SPILL pointed to

the fact that Chouteau Island was allowed to expand in 1994 after the 1993 flood as evidence

that the regulations are not stringent enough. (

.) SPILL alleged that landfills in floodplains

are allowed to accept special waste, including many hazardous wastes, which proves that the

laws are not stringent enough to protect human health. (PC 23 at 2.) SPILL expressed

concern that most floodplains are situated above aquifers and that a breached liner at a landfill

could lead to groundwater contamination. (PC 23 at 1.)

SPILL also maintained that the testimony and slide show at hearing were accurate, and

SPILL stands behind that testimony. (PC 23 a 2.)

PC 18, Illinois Environmental Protection Agency (Agency)

The Agency filed its comment to answer questions posed at the hearing that the Agency

was unable to answer at that time. Additionally, the Agency asked that the Board give

“appropriate weight” to the testimony of Mr. Janarthanan. The Agency pointed out that Mr.

Janarthanan did not “take into account current lan[d]fill technologies when performing his

modeling on the spread of leachate contamination plumes.” (PC 18 at 1.) The Agency also

stated that it agreed that a legislative change in the Act would be necessary to give the Board

the authority to change the regulations. (PC 18 at 1-2.)

The Agency also provided answers to questions concerning guarantees by

manufacturers of liner materials, what is flood-proofed, what maps and the age of the maps

used in establishing the floodplain, and finally the effect of the 1993 and 1995 Floods on

landfills. With regard to the liners, the Agency indicated that warranties for liners vary. Most

manufacturers provide a limited warranty of 1 to 20 years depending on liner application and

project location, liner thickness and liner area. (PC 18 Attach 1 at 1.) A facility is flood-

proofed if “the owner/operator constructs a system of berms, dikes, levees, ditches, or similar

engineered structures, or takes some other measure(s) which prevents the flood waters from

inundating waste treatment, storage or disposal area.” (PC 18 Attach 2 at 1.) Further, if a

levee is constructed to withstand a 100-year flood, the facility is not in a floodplain and would

not have to be flood-proofed. (

The Agency relied on “Flood Insurance Rate Maps” to assist in verifying that a facility

was in a floodplain. (PC 18 Attach. 2 at 3.) However, it was up to the operator to determine

whether the facility was in the floodplain. (

.) The age of these maps range from four years

to more than ten years old. (

The Agency indicated that there were approximately six landfill sites in the Madison,

St. Clair, and Monroe counties area which were effected by the floods in 1993 and 1995. (PC

18 Attach 2 at 2.) In the flooding of 1995, two groundwater monitor well sample sheets noted

high water in a swampy area for the Granite City Steel site. However, sampling was

accomplished. (

.) In the flooding of 1993, the South Chouteau Island landfill had damage

to a liner in a new, unused portion of the facility. The liner was repaired and recertified in

December 1993. (

.) Also at that facility, trapped flood water remaining on site had to be

aerated and discharged back to the river. (

.) The Milam Recycling and Disposal Facility

indicated that during the 1995 Flood, overflow from creeks delayed sampling of two

groundwater monitoring wells and a leachate monitoring well. (

.) At Monsanto Industrial

Chemicals, the landfill was surrounded by water and about one-third of the site was covered

with water at the time of the highest crest. (

.) The Sauget Monsanto Landfill, which is

inactive, was covered by flood water in 1993. A post flood inspection revealed that

approximately 12 deteriorated drums were exposed and in 1995 USEPA cleaned the site. (PC

18 Attach. 2 at 3.) Amoco Oil Company has three landfills on sites impacted by the floods.

Damage to the facility included erosion and leachate seepage from the caps and damage to the

liner system. (

.) Also, some groundwater monitoring wells were damaged. (

DISCUSSION

Before discussing the issues the Agency has asked us to address in this inquiry

proceeding, the Board would like to thank all the participants for the time expended in

attending the hearing and writing comments. Damage from the record floods within the past

25 years, particularly along our major rivers in 1973, 1993, and 1995, have shown that we

must reevaluate all human activities in floodplains. The Board hopes that this process will

continue and that this inquiry hearing has aided in the discussion and reevaluation of the

appropriate public policy regarding landfill siting in floodplains.

To properly address the issues raised by the inquiry hearing, we begin by setting forth

the specific requirements for pollution control facilities in Illinois, and the activities of

government agencies, and limits thereupon, that execute those requirements. The Act contains

the major laws governing environmental regulation in Illinois. Within that Act, the authority

and duties of agencies, such as the Board and the Agency, are set forth. The Act also

establishes the legal framework for the promulgation of rules and regulations passed by the

Board and the Agency to carry out their respective duties.

Section 39.2 of the Act (415 ILCS 5/39.2) lists nine criteria to be used by local

governments when considering local siting approval

for pollution control facilities,

which is

As previously mentioned, Section 39(c) of the Act (415 ILCS 5/39(c)) “grandfathers”

pollution control facilities which were issued development permits before November 12, 1981

and operating permits before August 31, 1989 so that such facilities do not need to submit

proof of local siting approval when applying to the Agency for permit renewals.

A pollution control facility is defined as “any waste storage site, sanitary landfill, waste

disposal site, waste transfer station, waste treatment facility or waste incinerator that accepts

waste from or that serves an area that exceeds or extends over the boundaries of any local

the first step in locating such facilities in Illinois. Section 39.2(a)(iv) establishes the criterion

to be met in order to obtain local siting approval. This section requires that “the facility is

located outside the boundary of the 100-year flood plain or the site is floodproofed.” After

receiving local siting approval, the developer of a pollution control facility must receive

appropriate development and operational permits from the Agency. In pursuing those permits,

the applicant must comply with regulations that mandate that a landfill not be located in the

100-year floodplain (35 Ill. Adm. Code 812.109), or that if so located, it will not restrict the

flow, or result in washout of solid waste in a 100-year flood, or reduce the temporary water

storage capacity of the 100-year floodplain. (35 Ill. Adm. Code 811.102(b).) In summary,

the Illinois General Assembly has established that landfills can be located in 100-year

floodplains, provided they are flood-proofed. Both the Board and the Agency have been

created by the Illinois General Assembly through the Act with specific authorities and duties.

Therefore, both agencies are creatures of statute and cannot legally go beyond the statutes in

carrying out their duties.

The purpose of the Board inquiry hearing was to determine whether additional landfill

regulations were necessary in Illinois to govern landfills and other waste treatment and transfer

facilities in 100-year floodplains. The opinions expressed in this proceeding generally dealt

with landfills and could be classified into two categories: some participants maintained that

landfills should be banned from the 100-year floodplain, while other participants argued that

the current regulations that allow landfills to be located in the 100-year floodplain are stringent

enough to protect human health and the environment.

Most of the testimony and comment in this proceeding did not directly address the four

questions that were supposed to frame the discussion. Therefore, it is virtually impossible to

adequately address those questions. Based on the record, the Board can, however, address the

underlying issue of this inquiry, that issue being whether landfills should be located within the

100-year floodplain. Thus, the proceeding discussion will be framed by reviewing the

evidence and arguments proposed to show that landfills should be banned from the 100-year

floodplain. Moreover, to properly understand the opposition to locating landfills within the

100-year landfill, we need to review the 25-year history of citizen opposition to the Chouteau

Island landfill. Hence, we begin our discussion by reviewing the testimony presented at the

hearing concerning opposition to the Chouteau Island landfill.

Questions and testimony at the Board hearing showed that the Chouteau Island landfill

in Madison County, which is owned by WMI, was the major focus of citizen opposition to

locating landfills in the 100-year flooplain. (Tr. at 28, 32, 36, 81, 94, 110, 115, 116, 122,

123, 127, 128, 130, 131, 144, 160.) Dr. Arnold outlined the history of the opposition to the

Chouteau Island landfill in PC 16. The first written record of local opposition to the Chouteau

Island landfill was a 1969 letter from the Chouteau Island Citizens’ Association to various

officials which voiced concerns about landfill operations and location in an area prone to

general purpose unit of government. This includes sewers, sewage treatment plants, and other

facilities owned or operated by sanitary districts organized under ‘An Act to create sanitary

districts and to remove obstructions in the Des Plaines and Illinois rivers’, approved May 29,

1889, as now or hereafter amended.” (415 ILCS 5/3.32.)

flooding. (PC 16 at Appendix F1.) Various local groups have appealed landfill permitting

decisions at Chouteau Island from 1972 to the present. (PC 16 at 6.) In the most recent

challenge, the Board found that pursuant to Sections 3.32(b) and 39(c) of the Act, the

Chouteau Island facility was not a new pollution control facility and an Agency permit to

expand was within the boundaries permitted in 1972 and, therefore, was not subject to local

siting review under Section 39.2 of the Act (see PCB 95-1, May 18, 1995). Dr. Arnold

maintained that the Chouteau Island landfill has been flooded six times since 1943. (PC 16 at

3.) He argued that 12 federal and State agencies have sufficient authority to close the landfill,

but these agencies have “no guts to take action.” (PC 16 at 6.)

Initially, we will respond to Dr. Arnold’s assertion that the Board has sufficient

authority to close the Chouteau Island landfill. First, as an administrative agency, the Board is

“a creature of statute,” and any power or authority claimed by it must find its source within

the provisions of the statute by which it is created. (Granite City Division of National Steel

Co. v. Pollution Control Board, 155 Ill. 2d 149, 171, 613 N.E 2d 719, 729 (1993).) The

Illinois General Assembly has specifically authorized the placement of landfills in the 100-year

floodplain in Illinois, provided they are flood-proofed. (415 ILCS 5/39.2(a)(4).) Although

Dr. Arnold contended at the hearing that “flood-proof” was a “weasel-word,” no evidence has

been shown at the hearing to dispute the engineering practices that are currently used to flood-

proof landfills. Absent specific, demonstrable proof that flood-proofing a landfill is

impossible, the Board does not have authority to keep landfills out of the 100-year floodplain

in Illinois. Such a proscription would require the Illinois General Assembly to amend Section

39.2(a)(iv) of the Act to remove the words, “or the site is flood-proofed.”

The major arguments advanced to support prohibiting landfills in the 100-year

floodplain include: 1) flood-proofing is not possible; 2) compensatory flood storage is not

calculated correctly; 3) leachate discharge threatens health and the environment; and 4)

washout of landfilled waste will occur. We will discuss each of these topics below.

Several people made statements at hearing or submitted public comments that disputed

the implication that landfills in 100-year floodplains could be engineered to be flood-proof.

The fact that the 1993 and 1995 Floods breeched the levees in Chouteau Island and inundated

the Chouteau Island landfill was cited as evidence that flood-proofing a landfill was not

possible. (Tr. at 81, 115-116, 120-121, 127, 143; PC 16 at 2-4.) One person cited Mr.

Janarthanan’s study as evidence that flooded landfills release contaminants to surface waters

and aquifers. (Tr. at 125.) WMI maintained that engineering techniques help ensure

protection of the environment, including such techniques as leachate control systems and

advanced liners. (PC 7 at 5-6.) WMI also pointed to several insufficiencies in the modeling

done by Mr. Janarthanan including the fact that Mr. Janarthanan’s study did not deal with site-

specific engineering systems such as liners and leachate handling systems. (PC 7 at 9.) WMI

asserted that the pumping records and photos presented at the hearings indicated that excess

leachate produced by floodwaters was not left to accumulate on the liner system, but was

routed to treatment. WMI indicated that in the most recent Significant Modification Permit for

the Chouteau Island landfill, the Agency approved WMI’s modeling of the leachate removal

and treatment systems. (PC 7 at 9.) Based on the information in this record, the Board cannot

conclude at this time that landfills cannot be engineered to withstand 100-year floods.

Dr. Arnold and Ms. Bowers asserted at hearing that landfills in the floodplain, and the

Chouteau Island landfill in particular, restrict the flow of floodwaters and reduce water storage

capacity of the floodplain. (Tr. at 110-111, 127-128.) In PC 4, Mr. Schein commented that

landfills fill floodplains and reduce the flood carrying capacity of the water course and its

floodplain areas. (PC 4 at 2.) In PC 16, Dr. Arnold and Ms. Andria assert that the flood

modeling for Chouteau Island was “an exercise in frustration.” (PC 16 at 4.) In Appendix F8

of PC 16, an illustration was presented showing a landfill schematic, flood level, and borrow

pits, as support for “rejecting” the concept of “compensation space.” The purpose of the

schematic was to bolster the assertion that borrow pits could not legitimately be used as space

to compensate for the floodwaters diverted by the landfill bulk in the floodplain. However,

the schematic included no numbers to challenge the numeric calculations which would be used

by a landfill owner, such as WMI, in demonstrating to permitting authorities that the landfill

will not increase flood height during floods (pursuant to Section 700.60). WMI noted in PC 7

at 3 that before IDOT would issue a permit to construct in the floodway, the applicant must

either hold a flood easement, or show that structures will not increase flood levels during a

flood event. WMI also pointed out that the Board’s regulations in 35 Ill. Adm. Code.Subtitle

G required documentation that the landfill will not reduce storage capacity of the 100-year

floodplain. (PC 7 at 4.) WMI asserted that at the Chouteau Island landfill, no restriction of

the 100-year flow was experienced. (PC 7 at 7-8.) The Board finds that testimony presented

at the hearing does not convince us at this time that the methods of calculating flood

compensatory storage are improper, either as a general concept or as specifically applied to the

Chouteau Island landfill.

The issue that leachate discharge threatens health and the environment was also raised

in this proceeding. However, the support for this argument relied on the study by Mr.

Janarthanan and assertions from witnesses that leachate was released from the Chouteau Island

landfill during flooding. (Tr. at 81.) As pointed out above, the study by Mr. Janarthanan did

not deal with site-specific engineering systems such as liners and leachate handling systems.

Thus, the usefulness of that study is limited for Board purposes. With regard to leachate

leakage, WMI asserts that leachate was routed to treatment at the Chouteau Island landfill

during the floods. The Agency indicated that six landfill sites in the Madison, St. Clair, and

Monroe counties were affected by floods in 1993 and 1995. (PC 18 Attach 2 at 2.) Although

some problems did occur, the only leachate seepage occurred from caps at a closed disposal

facility. (

.) Based on the information in this record, the Board cannot conclude that

leachate emissions from flooded landfills operating under current regulations (including liner

requirements and leachate collection systems) during flooding poses a threat to health or the

environment at this time.

Regarding washout from landfills, Ms. Andrea testified that solid waste was seen in

flood waters by a group she escorted to Chouteau Island. (Tr. at 81.) Additionally, Ms.

Bowers testified that once washout occurred, an extension of the landfill should not be granted.

(Tr. at 125.) However, WMI indicated that no washout occurred at Chouteau Island during

the 1993 and 1995 floods. (PC 7 at 7-8.) Thus, the record is not clear that washout occurred.

As Mr. Kuhn testified, the Board’s regulations require landfills to be designed to prevent

washout. (Tr. at 19.) Existing landfills must demonstrate that washout will not result in

adverse effects on human health. (

Id.

) Thus, the Board already has stringent regulations in

place prohibiting washout. Based on the record before the Board and the existing statutory

regulations that authorize the existence of landfills in floodplains, we do not believe additional

regulations are warranted at this time.

CONCLUSION

As previously noted, the Board is without authority to prohibit landfills from being

located in the 100-year floodplain unless section 39.2(a)(4) was amended by the legislature to

remove the words, “or the site is flood-proofed.” Moreover, sufficient evidence at the hearing

was not obtained to specifically address the four issues outlined by the Agency. Instead, the

majority of the testimony went directly to the underlying issue of whether landfills should be

located in the 100-year floodplain. In summary, the evidence against locating landfills in the

100-year floodplain, presented at the hearing, did not sufficiently rebut the evidence that

landfills can be engineered to withstand 100-year floods. Further, we have concluded that the

record of the hearing does not convince us at this time that the methods of calculating flood

compensatory storage are improper or that washout of waste or leachate from landfills in

Illinois caused by major floods in 1993 or 1995 had more than a

de minimis

effect on human

health or the environment thus warranting additional regulations at this time.

Most of the testimony in opposition to siting landfills in the 100-year floodplain was

generated by long standing citizen opposition to the placement of the Chouteau Island landfill,

which was re-ignited recently by an expansion of the landfill within the area originally

permitted in 1972. Citizens were denied the opportunity for local siting approval of this

expansion because of language in Sections 3.32(b) and 39(c) of the Act. While the Board

empathizes and understands the citizens’ position, the Board does not have the authority to

change those provisions of the Act; only the legislature can change the law to require landfills

permitted before 1981 to obtain local siting approval for expansions within the originally

permitted landfill area. Therefore, a statutory change is necessary to require local siting

approval for expansion of the Chouteau Island landfill within the area boundaries originally

permitted in 1972 (see PCB 95-1, May 18, 1995).

Based on the record before us, the Board cannot find that additional regulations on

landfills located in the 100-year floodplain are warranted at this time or that an outright ban on

these landfills is needed. However, common sense and the good use of natural resources

indicate that these measures may be necessary in the future. Landfills in Illinois are one of the

most highly regulated activities in the State, and the Board considers these regulations to be as

stringent as possible to make landfills in the 100-year floodplain flood-proof. However, we

also appreciate the comments of those, like Dr. Arnold, that recognize that the potential for

harm remains present even for those landfills that are deemed “flood-proofed.” Moreover,

other State agencies interested in this issue have stated that “it appears that when flood waters

inundate a landfill site, there is no method to ensure that those wasters are not contaminated by

potentially hazardous leachates” and advocate that current regulations be strengthened. (PC

5.) Because of the differences of opinion on this and other issues regarding locating landfills

in the 100-year floodplain, the Board believes it is necessary to continue to evaluate the current

regulations and public policy surrounding the existence of landfills in the 100-year floodplain.

Therefore, the recommendation of the Board is that Chairman Manning request the Natural

Resources Coordinating Council (NRCC)

to designate a committee to study the issue of the

propriety of locating landfills in the 100-year floodplain. Further, the Board believes that

resolution of these issues requires more technical evidence than can be produced at a public

hearing. Thus, the Board concludes that additional public hearings in this docket are not

warranted and that referring the matter to the NRCC is the appropriate course of action to take

in this matter.

This constitutes the Board’s order in this inquiry hearing. This docket is hereby closed.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that

the above order was adopted on the _____ day of ___________, 1997, by a vote of

______________.

___________________________________

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

The NRCC was created to provide a forum for agency directors and key staff to debate and

develop short and long-term environmental policies that are multi-agency in scope. The

members of this council are the Department of Natural Resources, the Department of

Agriculture, the Agency, the Department of Commerce and Community Affairs, the Illinois

Historic Preservation Agency, the Illinois Commerce Commission, the Department of Nuclear

Safety, the Department of Public Health, and the Board.